At the end of September, the European Commission proposed a new Pact on Migration and Asylum, which covers everything required for a comprehensive European approach to migration. The proposals deliver on Commission President von der Leyen’s commitment in her Political Guidelines. The Commission press release noted that ‘the current system no longer works’ and acknowledged that in the last 5 years the EU has not been able to fix it. The pact’s basis stems from in-depth consultations with the European Parliament, all Member States, civil society, the CCBE and business among others.
In 2015, the ‘migration crisis’ exposed the weaknesses in the EU rules relating to asylum (the ‘Dublin system’). Under the Dublin system, responsibility for asylum claims was placed on Member States of first entry. The increased number of migrants in 2015 put pressure on mostly southern European Member States, exposing the disparate asylum procedures between nations. As border states, Italy, Greece, Malta and Spain often see the most migrants land on their shores with other Member States able to distance themselves from the issue geographically.
Any efforts to streamline the system were resisted by certain Member States who have been able to thwart any reforms due to the Council’s unanimity requirement. The system had been conducted mainly ad hoc since 2015.
In September 2020, fires destroyed the Moria camp in Greece which housed more than 12,500 migrants and refugees which led to calls for European states to take firmer action.
The CCBE response to the consultation
The CCBE, representing the bars and law societies of 45 countries, welcomed the Commission’s initiative and provided a response to the consultation on the new roadmap for migration and asylum. This response covered:
- asylum policy and third countries – people seeking international protection must be permitted to access EU borders and should not be subject to landing platforms in third countries.
- effective access to asylum procedure – the new pact should provide adequate legal and procedural information to people seeking international protection including the criteria under which protection may be granted.
- legal assistance at all stages of the procedure – right for asylum seekers to free legal assistance before a court of first instance when a decision is taken at the border should be strengthened and to be informed of the necessity of legal assistance.
- regular and comprehensive training for lawyers – on the Common European Asylum System with a focus on assisting the vulnerable.
- legal aid funded at EU level – to ensure the availability of independent legal advice at all stages.
- prohibition on close controlled centres and the detention of children – the CCBE was clear that children should never be detained, and such centres should continue to be prohibited in the EU.
- the Dublin system –decisions on responsibility sharing should be subject to adequate notice to the people affected and permit appeals to independent tribunals. The CCBE called for a common European approach relating to conditions in countries of origin.
What is contained in the Pact?
The Commission sets out its approach to migration, addresses border management and ensures greater coherence to integrate both the internal and external dimensions of migration policies. It aims to tackle the imbalance of burdens faced by Member States relating to the arrival of migrants as well as streamlining the asylum process.
The pact proposes:
- a ‘fair sharing of responsibility and solidarity between Member States while providing certainty for individual applicants’;
- that the criteria for relocation shift away from the Dublin system to an emphasis on the well-being of children, family and academic ties;
- a quicker asylum border process (decisions taken within 12 weeks) as well as faster returns for failed applicants;
- a new mandatory screening pre-entry which involves identity, fingerprinting and registration in the Eurodac database, security and health checks;
- an independent monitoring mechanism which will ensure the respect of fundamental rights supported by a new EU Agency for Asylum, Frontex and the Fundamental Rights Agency;
- individual assessment of asylum claims and guarantees protecting effective access to asylum, rights of children, right to liberty and to an effective remedy; and
- flexible options for how Member States take part (taking recent arrivals, providing immediate operational support, each state being legally required to contribute their ‘fair share’ based on GDP and population size as well as ‘sponsoring’ returns i.e. ensuring that people refused asylum are sent back on behalf of other states).
Critics say that the pact does not address the issue of values nor broader migration trends, choosing instead to focus on predominantly technical aspects. The proposal delays the most politically charged decisions on permanent relocation and regular migration (leaving them for future action plans which are expected in 2021). By separating legal migration and irregular migration, the Commission has not acknowledged that, in reality, migrant flows contain all types: asylum seekers, refugees and migrants.
Human rights groups also raised concerns that faster procedures leave migrants with fewer procedural guarantees and ultimately raises concerns from a rule of law perspective.
Further criticism has been levelled at the solidarity mechanism. It appears its legally binding nature would only apply under ‘pressure’ situations (to be assessed by the Commission and Member States) and would revert to a voluntary nature otherwise.
The Czech Republic, Hungary and Poland have overtly criticised the new mechanism of solidarity with Slovakia also reportedly concerned. The view of these Member States is that the EU should concentrate on stopping rather than managing migration. Even before the pact was announced, Austrian Chancellor Sebastian Kurz said the proposals would not work.
Member States that are important arrival and relocation countries such as France, Germany, Greece and Italy have struck a note of cautious optimism. However, the pact needs unanimity for approval and must go through negotiations with both the European Parliament and the Council.